[Cite as State v. McConnell , 2021-Ohio-41.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Patricia A. Delane y , J. -vs- : : Case No. 20-CA-00005 : JACK A. MCCONNELL : : : Defendant-Appellan t : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Case No. 19-CR-0027

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: January 8, 2021

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant: JOSEPH A. FLAUTT JAMES S. SWEENEY PERRY COUNTY PROSECUTOR 285 South Libert y St. 111 North Hi g h Stree t Powell, OH 43065 P.O. Box 569 New Lexin g ton, OH 43764-0569Perry County, Case No. 20-CA-00005 2

Delaney, J. {¶1} Defendant-Appellant Jack A. McConnell appeals the February 3, 2020 sentencing judgment entry of the Perry County Court of Common P leas. Plaintiff-Appellee is the State of Ohio. FACTS AND PROCEDURAL HISTORY {¶2} On February 20, 2019, Defendant-Appellant Jack A. McConnel l was driving on State Route 204 when his car left the roadway. He exited his car with a handgun and discharged it towards a vehicle driving on the road, occupied b y four women. McConnell was arrested and indicted by the Perry County Grand Jury on Mar ch 27, 2019 for discharge of a firearm on or near a prohibited premises, a thir d-degree felony in violation of R.C. 2923.162(A)(3) and (C)(2); having weapons while under d isability, a third-degree felony in violation of R.C. 2923.13(A)(3); and felonious assaul t with a firearm specification, a second-degree felony in violation of R.C. 2903.11(A)(2) and ( D)(1)(a) and R.C. 2941.145. McConnell entered a plea of not guilty to the charges

. First Evaluation {¶3} McConnell filed a “Motion for Evaluation of Current Compet ency to Stand Trial and Sanity at the Time of the Alleged Offense” on May 22, 2019. He requested an expert evaluation at the public expense. He simultaneously file d a “Written Plea of Not Guilty by Reason of Insanity.” {¶4} On May 23, 2019, the trial court granted the motion for ev aluation. It ordered the evaluation of McConnell’s mental competence and sanity to b e completed by Forensic Diagnostic Center of District Nine. McConnell did not object to Forensic Diagnostic Center completing the evaluations.Perry County, Case No. 20-CA-00005 3 {¶5} Reports of the two evaluations conducted by the Forensic D iagnostic Center of District Nine were filed with the trial court on June 28, 2019. {¶6} On July 2, 2019, the trial court held a hearing regarding the evaluations. Zach Meranda, trial counsel’s partner, appeared at the hearing to represent McConnell because trial counsel was unable to attend the hearing. The tri al court asked the parties if the attorneys had an opportunity to review the evaluations, to which both responded they had. (T. 3). The trial court asked: THE COURT: Okay. And Mr. Meranda, did you wish to stipulate to either one of those or -- MR. MERANDA: Your Honor, I’ve had an opportunity to review both the reports. At this time we would stipulate to their findings, and – that’s contained in both reports at this time. (T. 3). {¶7} The trial court found McConnell was competent to stand tri al. (T. 3). It asked if McConnell was going to withdraw his plea of not guilty by re ason of insanity. Meranda stated he would discuss it wi th McConnell’s trial counsel so tr ial counsel could discuss it with the court. (T. 4). {¶8} The trial court journalized its findings via journal entry filed July 3, 2019. The entry stated, The parties stipulated to the evaluation. It is Dr. Adkins’ pro fessional opinion, with a reasonable degree of psychological certainty, t hat the Defendant is currently capable of understanding the legal proce edings against him and capable of assisting counsel in his own defense . * * * InPerry County, Case No. 20-CA-00005 4
addition, the parties stipulated to Dr. Adkins’ report of the D efendant’s mental state at the time of the offense also filed on June 28, 2019. (Judgment Entry, July 3, 2019). Second Evaluation {¶9} On July 25, 2019, McConnell filed a second motion for eval uation at public expense of his competency to stand trial and sanity at the time of the alleged offense. He also filed a written plea of not guilty by reason of insanity. The trial court held a hearing on the motion on August 1, 2019. Trial counsel stated that base d on his conversations with his client and McConnell’s family, he was requesting a sec ond opinion from Dr. Daniel Davis regardi ng McConnell’s competency to stand trial an d sanity at the time of the alleged offense. (T. 4). Trial counsel stated Dr. Davis use d a different analysis method than the Forensic Diagnostic Center. (T. 6). The trial court di d not understand why McConnell would stipulate to the first evaluation. (T. 4). Tria l counsel stated: MR. ITAYIM: The results of the first evaluation, we are – we’ve stipulated to. But we can request a second opinion even if we have agreed – even if we’ve agreed to stipulate to that document. THE COURT: And you’ve agreed that he’s competent? MR. ITAYIM: We – the – the Court deemed him competent. We just stipulated to the document. (T. 4-5). {¶10} The trial court issued its judgment on August 19, 2019. I t granted the motion in part to allow a second sanity evaluation completed by Dr. Da niel Davis. It deniedPerry County, Case No. 20-CA-00005 5 McConnell’s request for a second competency evaluation complete d at the public
expense. {¶11} The evaluation was filed on October 29, 2019. Change of Plea and Sentencing {¶12} On November 15, 2019, the trial court held a change of pl ea hearing where McConnell entered a plea of guilty to the charge of felonious a ssault with a firearm specification. The State dismissed the remaining charges. The t rial court conducted a plea colloquy and accepted McConnell’s change of plea but order ed a presentence investigation before sentencing. (Plea of Guilty, Nov. 18, 2019 ). {¶13} McConnell appeared for a sentencing hearing on January 27 , 2020. Via sentencing entry filed February 3, 2020, the trial court senten ced McConnell to three years in prison for felonious assault and three years in prison for the firearm specification, to be served consecutively. {¶14} It is from this sentencing entry that McConnell now appea ls. ASSIGNMENTS OF ERROR {¶15} McConnell raises one Assignment of Error: {¶16} “THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT’S MOTION FOR A SECOND COMPETENCY EVALUATION.” ANALYSIS {¶17} McConnell contends in his sole Assignment of Error that t he trial court abused its discretion when it denied his request for a second c ompetency evaluation at public expense. Based on the record before us, we disagree.Perry County, Case No. 20-CA-00005 6

First Evaluation {¶18} McConnell initially entered a plea of not guilty to the c harges, but prior to trial, he filed a written plea of not guilty by reason of insan ity (“NGRI”) and argued he was not competent to stand trial. Pursuant to R.C. 2945.37(B), “In a criminal action in a court of common pleas, * * * the * * * defense may raise the issue of the defendant's competence to stand trial. If the issue is raised before the trial has com menced, the court shall hold a hearing on the issue as provided in this section.” After McConn ell filed motions raising the issue of his competence to stand trial and his NGRI plea, the t rial court ordered an evaluation pursuant to R.C. 2945.371(A): If the issue of a defendant's competence to stand trial is rais ed or if a defendant enters a plea of not guilty by reason of insanity, th e court may order one or more evaluations of the defendant's present mental condition or, in the case of a plea of not guilty by reason of insanity, of the defendant's mental condition at the time of the offense charged. An examine r shall conduct the evaluation. {¶19} After the evaluations were filed, the trial court held a competency hearing on July 2, 2019. The standard for competence is set forth in R. C. 2945.37(G): A defendant is presumed to be competent to stand trial. If, aft er a hearing, the court finds by a preponderance of the evidence that, becaus e of the defendant's present mental condition, the defendant is incapabl e of understanding the nature and objective of the proceedings again st the defendant or of assisting in the defendant's defense, the court shall find thePerry County, Case No. 20-CA-00005 7
defendant incompetent to stand trial and shall enter an order a uthorized by section 2945.38 of the Revised Code. State v. Russell , 5th Dist. Ashland No. 18-COA-021, 2019-Ohio-692, 2019 WL 9822 41, ¶ 11. {¶20} The definition for the legal insanity standard is set for th in R.C. 2901.01(A)(14). A person is “not guilty by reason of insanity” if the person proves that at the time of the commission of the offense, the person did not k now, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts . Notably, the standard for competency is different, in tha t it relates to the defendant's present mental condition and his ability to understand the nature of the proceedings against him and to assist his counsel in his defense. State v. Eick , 5th Dist. Stark No. 2010CA00267, 2011-Ohio-1498, ¶ 28 citing R.C. 2945.37. {¶21} NGRI is an affirmative defense that must be proved by the defendant by a preponderance of the evidence. State v. Eick , 5th Dist. Stark No. 2010CA00267, 2011- Ohio-1498, ¶ 29 citing State v. Jennings , 10th Dist. Franklin No. 05AP–1051, 2006–Ohio– 3704, 2006 WL 2022235, ¶ 10; State v. Taylor , 98 Ohio St.3d 27, 2002–Ohio-7017, 781 N.E.2d 72, ¶ 64; R.C. 2901.05(A). With an insanity defense, the defendant must persuade the trier of fact that at the time of the commission of the off ense, he did not know the wrongfulness of his acts, as a result of a severe mental diseas e or defect. Jennings at ¶ 10. The proper standard for determining whether a defendant has successfully demonstrated this defense and thus is entitled to an NGRI instr uction is whether he has “ ‘ “introduced sufficient evidence, which, if believed, would raise a question in the minds of reasonable men concerning the existence of such issue.” ‘ “ State v. Thomas , 10thPerry County, Case No. 20-CA-00005 8
Dist. Franklin No. 06AP–675, 2007–Ohio–1171, 2007 WL 778606, ¶ 11, quoting State v. Tantarelli , 10th Dist. No. 94APA11–1618, 1995 WL 318730 (May 23, 1995), q uoting State v. Melchior , 56 Ohio St.2d 15, 20–21, 381 N.E.2d 195 (1978). {¶22} At the competency hearing, the parties stipulated to the findings in the evaluations. The trial court filed its judgment entry on July 3 , 2019, finding McConnell was competent to stand trial. Second Evaluation {¶23} Less than a month later, McConnell filed a second motion for evaluation to determine his competency to stand trial and his mental conditio n at the time of the alleged offense. After a hearing on the motion, the trial court granted the motion for a second evaluation of McConnell’s mental condition at the time of the a lleged offense but denied the motion for a second evaluation of his competency to stand t rial. McConnell’s arguments on appeal solely regard the trial court’s denial of h is request for a second evaluation of his competency to stand trial. {¶24} It is within the trial court’s discretion to order a seco nd evaluation. R.C. 2945.371(A) states in pertinent part, “If the issue of a defend ant’s competence to stand trial is raised * * *, the court may order one or more evaluations of the defendant's present mental condition.” (Emphasis added.) “* * * [T]he use of the wo rd ‘may’ supports the conclusion that a trial court is not required to order an evalu ation of the defendant's mental condition every time he raises the issue. Instead, the wording of the statute implies that the ordering of an examination is a matter within the discretio n of the trial court.” State v. Bailey , 90 Ohio App.3d 58, 67, 627 N.E.2d 1078 (11th Dist.1992); State v. Eick , 5th Dist. Stark No. 2010CA00267, 2011-Ohio-1498, ¶ 32. To find that the t rial court abused itsPerry County, Case No. 20-CA-00005 9 discretion in denying Appellant's request for a competency re-e valuation, we must find that the trial court's decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). {¶25} McConnell agues the trial court abused its discretion whe n it denied the motion for a second competency evaluation. McConnell contends i n his appeal that while Mr. Meranda (who appeared at the hearing on trial counsel’s beh alf) stipulated to the findings of the competency evaluation, trial counsel believed t hat Mr. Meranda only stipulated to the document. McConnell does not cite R.C. 2945.3 7(E) in support of his argument, but pursuant to that statute, “[t]he prosecutor and d efense counsel may submit evidence on the issue of the defendant's competence to stand tr ial. A written report of the evaluation of the defendant may be admitted into evidence at th e hearing by stipulation, but, if either the prosecution or defense objects to its admiss ion, the report may be admitted under sections 2317.36 to 2317.38 of the Revised Code or any other applicable statute or rule.” We do not believe R.C. 2945.37(E) supports Mc Connell’s argument on appeal based on the discussion of the competency evaluation at the first and second hearings. {¶26} At the first hearing, the trial court asked the parties i f the attorneys had an opportunity to review the evaluations, to which both responded they had. (T. 3). The trial court next asked: THE COURT: Okay. And Mr. Meranda, did you wish to stipulate to either one of those or --Perry County, Case No. 20-CA-00005 10
MR. MERANDA: Your Honor, I’ve had an opportunity to review both the reports. At this time we would stipulate to their findings, and – that’s contained in both reports at this time. (T. 3). Mr. Meranda did not tell the trial court that he only s tipulated to the admission of the evaluation into evidence, nor did he object to the admissio n of the evaluation. {¶27} Trial counsel stated in his motion for second evaluation that he was requesting a second evaluation because his discussions and rece nt interactions with McConnell caused him to question McConnell’s ability to appreci ate the criminal nature of actions he allegedly committed. (Motion, July 25, 2019). At the August 1, 2019 hearing on the motion for the second competency evaluation, trial couns el stated that based on his conversations with his cli ent and McConnell’s family, he wa s requesting a second opinion regarding McConnell’s compe tency to stand trial and san ity at the time of the alleged offense. (T. 4). Trial counsel and the trial court had the following discussion about the stipulation to the first competency evaluation: THE COURT: So I’ve already found him competent to stand trial b ased upon the stipulation. MR. ITAYIM: I’m aware, Your Honor. THE COURT: So you’re asking for another – another evaluation wh en he’s already been found competent? MR. ITAYIM: I’m – I’m requesting a second opinion, Your Honor, yes. THE COURT: I don’t understand why you would stipulate to the fi rst evaluation.Perry County, Case No. 20-CA-00005 11
MR. ITAYIM: The results of the first evaluation, we are – we’ve stipulated to. But we can request a second opinion even if we have agreed – even if we’ve agreed to stipulate to that document. THE COURT: And you’ve agreed that he’s competent? MR. ITAYIM: We – the – the Court deemed him competent. We just stipulated to the document. (T. 4-5). Trial counsel did not state they only stipulated to t he admission of the document into evidence pursuant to R.C. 2945.37(E). {¶28} The trial court and trial counsel next discussed his basi s for requesting a second evaluation: THE COURT: And you want that done at State expense. So what – w hat is the – what is the reason for the request for a second evaluatio n? MR. ITAYIM: It’s based on my conversations with my client. (T. 5). Trial counsel questioned the evaluation done by the For ensic Diagnostic Center: MR. ITAYIM: Is that they’re stating one thing and my conversati ons with my client ongoing raises additional concerns, and that’s why I’m r equesting the second opinion. * * * The end re sult is what I’m – I’m question ing based on their individual evaluations on their testing. THE COURT: Have you talked to the doctors, questioned them abou t their evaluation? MR. ITAYIM: No, Your Honor. I’m ju st familiar with the Forensic Diagnostic Center. * * * I’m familiar with Dr. – Dr. Davis from Columbus. * * * I found him to be extremely – extremely competent. His reports are more thorough.Perry County, Case No. 20-CA-00005 12 The analysis is different. And based on that, I think he’d be a more appropriate individual to – to give a second opinion because he does do different – different testing. (T. 5-6). {¶29} On this record, we cannot say the trial court abused its discretion in denying a second competency evaluation of McConnell at public expense. When the trial court ordered the Forensic Diagnostic Center to complete the evaluati on of McConnell’s competency, trial counsel did not object to the trial court’s s election of evaluator. At the competency hearing, counsel for McConnell said they had reviewe d the evaluations and stipulated to the findings of McConnell’s competency to stand t rial. It did not appear from the record that counsel was stipulating to the admission of the evaluation as evidence under R.C. 2945.37(E). {¶30} Trial counsel provided two reasons to the trial court for a second competency evaluation: (1) his discussions with his client and (2) he was familiar with the Forensic Diagnostic Center. He did not clarify at the hearing w hether his familiarity with the Forensic Diagnostic Center was negative or positive. He dif ferentiated between the evaluation completed by the Forensic Diagnostic Center and an e valuation done by Dr. Davis as “different and more thorough.” Trial counsel admittedl y did not question the evaluators at the Forensic Diagnostic Center as to their method ology or analysis. A different analysis does not automatically indicate a different conclusion. We do not find the trial court abused its discretion to deny a second competen cy evaluation based on the record in this case. {¶31} McConnell’s sole Assignment of Error is overruled.Perry County, Case No. 20-CA-00005 13

CONCLUSION {¶32} The judgment of the Perry County Court of Common Pleas is affirmed. By: Delaney, J., Wise, John, P.J. and Gwin, J., concur.